Scottish Court of Session Decisions

The Bank of Scotland held a bill of exchange for £274, drawn by one M'Kenzie upon, and accepted by, the pursuer, Macdonell, tacksman of two farms in Inverness-shire, dated 23d September, 1828, and payable six weeks after date. When the bill fell due, the pursuer paid £100 to account, but for payment of the balance, diligence was raised, and, on the 22d December, a charge was given the pursuer. The execution of this charge returned by the messenger employed by the Bank was ex facie regular, but neither of the witnesses thereto had been actually present, and the name of one of them, bearing to have subscribed the execution, was forged, while the copy charge did not specify the indudæ, the blank space for the number of days having been omitted to be filled up. Denunciation followed; and, on the 27th January, a poinding was executed of the pursuer's stock and furniture, but the persons who made the appraisement were not licensed appraisers. No oath de fideli was administered to them, and they valued the stock at random from a distance, and greatly below its value. On the 9th February, the pursuer, who had been from home when the poinding was executed, went to Inverness to consult his agent thereanent, and on entering the town he was apprehended under letters of caption, by the same messenger who had been employed to conduct the previous proceedings at the instance of the Bank, following on the charge and denunciation above mentioned. The irregularity in the copy charge in omitting to specify the days of charge, was then pointed out by the pursuer, and communicated to the Bank-agent at Inverness, who consented to liberate the pursuer, but only on condition of his signing a letter, passing from all claim of damages against the Bank on account of what had taken place. This the pursuer refused, and he was thereupon committed to jail, where he remained a month, at the expiry of which he was liberated, in consequence of the drawer having paid the balance due on the bill. The pursuer then raised an action of reduction improbation of the diligence, and proceedings had thereon, against the Bank, concluding also for damages on account of the wrongous poinding and imprisonment. The following issues were sent to trial:—

“Whether, on or about the 4th day of January, 1829, the defenders wrongfully poinded, or wrongfully caused to be poinded, certain goods the property of the pursuer, to the loss, injury, and damage of the pursuer?

“Whether, on or about the 9th day of February, 1829, the defenders wrongfully apprehended the pursuer, or wrongfully caused the pursuer to be apprehended and incarcerated in the jail of Inverness, to the loss, injury, and damage of the pursuer?”

The evidence led by the pursuer established the facts above detailed, and also that, in consequence of the proceedings in question, his landlord had been led to sequestrate his stock, and that his credit, which was previously good, had been destroyed.

The Bank, who had in the mean time obtained decree of relief against the messenger and his cautioner, led no evidence, but contended—

1. That the employer of a messenger, who is a public officer, was not liable for blunders committed by him in the execution of diligence intrusted to him; ¹ and besides that, the omission of the days of charge was not a fatal blunder, six days being the known induciæ of charge on a bill of exchange, so that the pursuer could not be ignorant of them.